EU - The Court of Justice of the EU declares the Data Retention Directive to be invalid. Radio Nizkor with the collaboration of the International Human Rights Law Clinic at the American University Washington College of Law, 23Apr14.

On April 8th, 2014, the Court of Justice of the European Union ruled that the mass storage of telecommunications data violates the fundamental rights to respect for private life and to the protection of personal data.

The EU Data Retention Directive compelled telephone and Internet companies to retain traffic and location data as well as related data necessary to identify the subscriber or user for the purpose of the prevention, investigation, detection and prosecution of serious crime, such as, in particular, organised crime and terrorism.

The European Court of Justice had to issue a preliminary ruling concerning the validity of Directive 2006/24/CE of the European Parliament and of the Council of 15 March 2006. The request addressed to the European Court has its origin in a case triggered in Ireland by Digital Rights Ireland. The Court joined this case with another request made by the Austrian Constitutional Court concerning the compatibility with the Federal Constitutional Law of the law transposing Directive 2006/24 into Austrian national law.

The Court has found that data retention entails a wide ranging and particularly serious interference with the fundamental right to privacy... "The Court observes first of all that the data to be retained makes it possible, in particular :

to know the identity of the person with whom a subscriber or registered user has communicated and by what means,

to identify the time of the communication as well as the place from which that communication took place and

to know the frequency of the communications of the subscriber or registered user with certain persons during a given period."

"Those data, taken as a whole, may provide very precise information on the private lives of the persons whose data are retained, such as the habits of everyday life, permanent or temporary places of residence, daily or other movements, activities carried out, social relationships and the social environments frequented."

"The Court takes the view that, by requiring the retention of those data and by allowing the competent national authorities to access those data, the directive interferes in a particularly serious manner with the fundamental rights to respect for private life and to the protection of personal data."

Though the Directive has now been struck down, the issue will remain live in all the countries who have passed domestic law to implement the data retention mass surveillance regime.

EU/Bel - SABAM vs Netlog: Another important ruling for the Open Internet and for fundamental rights after Scarlet vs. SABAM. (European Digital Rights). Radio Nizkor, 19Mar12.

"A few months after the Scarlet/SABAM case, the Court of Justice of the European Union has released a new decision on the legality of filtering systems on the Internet, this time with regard to filtering of content stored on web services.

Last February 16th, the Court of Justice of the European Union ruled that a social network “cannot be obliged to install a general filtering system, covering all its users, in order to prevent the unlawful use of musical and audio-visual work”.

SABAM brought the social network Netlog to court to impose an injunction requiring the installation of filtering systems aimed at the prevention of infringements committed by its Belgian members (around 2 million consumers) on its website.

A social network is a set of online communication tools that allow the creation and exchange of user-generated content. Netlog is an online platform, where members can create their own webpage with a blog, pictures, playlists, videos… and as such considered as a social network, and a hosting provider...

The SABAM v. Netlog judgment represents a new win for fundamental freedoms.

Particularly now, in a political climate where the foundations of the current Internet are at stake, the European judges have re-emphasised the importance of not overburdening communication tools with restrictive technologies. This is crucial to protect the fundamental rights value of the Internet as well as its economic significance.

For the second time in a just a few months, thanks to actions taken by SABAM have led the Court of Justice of the EU to underline the importance of an open and free Internet and the respect for fundamental freedoms, such as the freedom of communication privacy and the freedom to conduct business.

But what is the difference between the Scarlet case and the Netlog decision?. The wording of the questions was the same in both cases except that the Netlog decision specifically addresses the situation of hosting providers, while the Scarlet case involved Internet access providers...

In the Scarlet case, the issue was about an access provider, a "mere conduit" (a service consisting of "transmission" in a communication network) in the language of the E-Commerce Directive.

SABAM wanted the ISP Scarlet to install a generalised filtering system for all incoming and outgoing electronic communications passing through its services and to block potentially unlawful communications.

In First Instance, while refusing the liability of the ISP, the Brussels Court concluded that the SABAM's claim was legitimate and that a filtering system had to be deployed. Scarlet appealed and the case was referred to the Court of Justice of the European Union. In its decision, the Court of Justice ruled that a filtering and blocking system for all its customers for an unlimited period, in abstracto and as preventive measure, violates fundamental rights, more particularly the right to privacy, freedom of communication and freedom of information. In addition, it breaches the freedom of ISPs to conduct business..."

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January 2012

EU/USA - US intervenes in the revision of the EU data protection Directive while EU Commission postpones the publication of the proposal for its review. (Privacy and Information Security Law blog, European Digital Rights). Radio Nizkor, 30Jan12.

"According to a spokesperson at the European Commission, the publication of the proposal for the review of the EU Data Protection Directive has been postponed until late February or March 2012.

The draft proposal was scheduled to be officially released in late January after it was leaked in December 2011.

According to various sources, the proposal received negative responses from several Directorates-General over the course of the 'inter-service consultation,' some of whom have voiced their concern that the proposed new framework would be stricter than the current legal framework and thus may have a negative impact on businesses.

For example, parts of the proposal, such as the right to be forgotten, are viewed by some as potentially too burdensome for companies.

The delay in the release date for the proposal will push back the formal adoption of the draft proposal by the European Commission.

Viviane Reding, Justice Commissioner and Commission Vice-President, is said to be working on a communication in which she will outline several key goals and objectives for the draft proposal. The draft proposal has not yet entered into the legislative process and may undergo substantial changes before it reaches that stage."

European Digital Rights informs that "right at the end of the inter-service consultation process in the European Commission (the almost final step before a legislative proposal is launched), the United States Department of Commerce launched a significant lobbying campaign against the leaked draft proposal for a Data Protection Regulation. The campaign included high-level phone calls from senior figures in the US Department of Commerce to top level staff in the European Commission covering topics such as US business, multilateral and bilateral treaty organizations, PNR, national security, law enforcement, trade and innovation."

"In general, the US complained about the draft proposal arguing that it will break with international standards and might even end up being counterproductive for data protection..."

European Digital Rights has analized the most prominent exaggerations and misunderstandings in the US paper, namely those pertaining to interoperability, data breach requirements, right to be forgotten, definition of "child", adequacy, regulatory enforcement and international cooperation.

It concludes that "Most of the objections are rather specious, obviously weak or plain wrong and interest-driven, aiming to water down the standards in the leaked draft Regulation. This early-stage intervention obviously aims at reducing interference with access by the US to any data about European citizens in the course of their investigations, showing very little effort to understand the European concept of privacy."

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USA/EU - The proposed EU-US Passenger Name Record (PNR) agreement breaches data protection, due process and other fundamental rights. Radio Nizkor with the collaboration of the International Human Rights Law Clinic at the American University Washington College of Law, 30Jan12.

On 17 November 2011, U.S. and EU officials initialled a proposed agreement to authorize airlines to forward passenger name record data to the U.S. Department of Homeland Security (DHS).

Although the agreement cannot take effect without the approval of the European Parliament and the Council, the Members of the European Parliament (MEPs) could read the proposed agreement only in a sealed room where they could not take notes or make copies.

The complete text on which the European Parliament will vote has finally been made public, revealing a failure to address the concerns raised by the Parliament and continued shortfalls in data protection, due process, and protection of fundamental rights.

In its resolution of 5 May 2010, the Parliament said that the Passenger Name Record (PNR) agreement should take the form of a treaty, recognize the fundamental right to freedom of movement, prohibit the use of PNR data for data mining or profiling, and take into consideration "PNR data which may be available from sources not covered by international agreements, such as computer reservation systems located outside the EU."

The proposed agreement does not meet these criteria, and does not mention any of these issues...

In view of the upcoming vote on the EU-USA PNR Agreement, the Austrian Organization for the Use of the Internet and NoPNR.org, with the endorsement, among others, of The Identity Project, Friends of Privacy USA, Center for Financial Privacy and Human Rights, Statewatch and Privacy International, sent an Open Letter to the European Parliament asking its Members to consider the following issues for their decision on the EU-US PNR Agreement:

The proposed agreement will not result in improved legal security for citizens

There is no access control or access logging

The proposed agreement does not meet the conditions set by the European Parliament

There is no appropriate information to travelers

This program has been prepared with information provided by the Electronic Privacy Information Center, European Digital Rights, The Identity Project and StateWatch.

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December 2011

USA/EU - "Outside the United States, Extraordinary Rendition on Trial". (Alka Pradhan for the American Society of International Law). Radio Nizkor with the collaboration of the International Human Rights Law Clinic at the American University Washington College of Law, 16Dec11.

"Three pending cases before the European Court of Human Rights highlight allegedly illegal acts committed by European countries in connection with the U.S. extraordinary rendition program.

The first, filed by Khalid El-Masri in September 2009, claims unlawful abduction and mistreatment by the Macedonian Ministry of the Interior.

The second was filed by Abd Al-Rahim al Nashiri for alleged mistreatment during his detention at a secret prison (“black site”) in Poland...

The third, most recent case was filed against Lithuania by Zayn al-Abidin Muhammad Husayn (“Abu Zubaydah”) for alleged secret detention and torture by CIA agents committed at a Lithuanian black site...

El-Masri’s petition alleges that Macedonia violated Article 3 (prohibition of torture or inhuman or degrading treatment or punishment) of the European Convention on Human Rights by failing to intervene during his torture and inhuman treatment by CIA agents in Macedonia; by allowing him to be transported to Afghanistan with the knowledge that he would be tortured and inhumanly treated at the destination; and by failing to investigate his arrest, detention, and transfer to the CIA by Macedonian authorities.

Additionally, El-Masri claims that his detention by Macedonian authorities for twenty-three days, along with his transfer to CIA agents, violated his right to liberty and security of person (Article 5), and that the failure by the Macedonian criminal courts to hear his case violated his right to remedy guaranteed by Article 13 of the Convention.

Regarding Al Nashiri, his petition alleges violations of Articles 2 (right to life), 3 (prohibition of torture or inhuman or degrading treatment or punishment), 5 (liberty and security of person), 8 (right to private and family life), 10 (freedom of expression), and 13 (right to remedy) of the Convention, and Protocol 6 to the Convention (abolition of the death penalty)...

If the Court accepts El-Masri’s and/or al Nashiri’s applications, both the applicants and the member states will be invited to present their claims before the Court. Should the Court find that a member state has violated the Convention, it may issue a declaratory judgment, order payment of damages and legal costs, or implement other measures of reparation.

Chamber judgments may be appealed to the “Grand Chamber,” whose judgments are final. Because the United States is not a party to the European Court of Human Rights, it is not named in the applications. However, if the United States decides to participate in the proceedings, the Court has the discretion to allow a third party to intervene in the form of written comments..."

"Civil liberties group raises concerns over Metropolitan police purchase of technology to track public handsets over a targeted area.

Britain's largest police force is operating covert surveillance technology that can masquerade as a mobile phone network, transmitting a signal that allows authorities to shut off phones remotely, intercept communications and gather data about thousands of users in a targeted area.

The surveillance system has been procured by the Metropolitan police from Leeds-based company Datong plc, which counts the US Secret Service, the Ministry of Defence and regimes in the Middle East among its customers.

Strictly classified under government protocol as "Listed X", it can emit a signal over an area of up to an estimated 10 sq km, forcing hundreds of mobile phones per minute to release their unique identity codes, which can be used to track a person's movements in real time.

The disclosure has caused concern among lawyers and privacy groups that large numbers of innocent people could be unwittingly implicated in covert intelligence gathering...

Nick Pickles, director of privacy and civil liberties campaign group Big Brother Watch, warned the technology could give police the ability to conduct "blanket and indiscriminate" monitoring... He added that "Such invasive surveillance must be tightly regulated, authorised at the highest level and only used in the most serious of investigations. It should be absolutely clear that only data directly relating to targets of investigations is monitored or stored." [...]

Regarding the investigatory powers act, lawyers have condemned what appears to be deception of the courts by undercover police and have called for fundamental reforms of the legislation governing covert operations.

"The revelation that a constable who infiltrated protest groups gave false evidence in court under oath triggered demands for a review of the Regulation of Investigatory Powers Act (Ripa)...

Gordon Nardell QC, who is leading the Bar Council's working party on the operation of Ripa, said that “At the moment the law allows the police to target legally privileged communications between lawyer and client”. "The Bar Council thinks that is fundamentally wrong and creates a risk of miscarriages of justice. People accused of crime must be able to speak freely with their lawyer in the knowledge that what they say is kept from the ears of the investigating authorities.”

"We hope to persuade the House of Lords to make amendments to the protection of freedoms bill to ban the police from covertly gaining access to privileged lawyer-client communications..."

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EU - The Data Retention Directive should be repealed given that it does not meet privacy requirements. (Electronic Privacy Information Center, European Digital Rights, Office of the European Data Protection Supervisor). Radio Nizkor, 29Nov11.

The Directive applies to traffic and location data and the "related data necessary to identify" a user. Each EU member state must retain this data for a period of six months to two years from the date of the user's communication.

The Directive also requires each EU member state to enact procedures that grant law enforcement access to the data. According to Hustinx, the Directive does not provide clear guidance about why this data must be retained or who will have access to it.

Similarly, Hustinx believes that the Directive does not sufficiently justify the necessity of the data retention, lacks foreseeability, and is overly intrusive. He also notes that statistics on access requests indicate that a retention period of up to two years 'goes far beyond' what is necessary. In light of these concerns, Hustinx has asked the European Commission to consider all other options, 'including the possibility of repealing the Directive.' [...]

On 26 September 2011, European Digital Rights and 37 other NGOs from 14 countries sent a letter to Commissioners Malmström, Kroes and Reding on the review of the Data Retention Directive.

In their communique informing of the sending of the letter, European Digital Rights states “The central mistake which we would like not to see repeated is the fallacy that all uses of retained data can be used to argue that the Directive is valuable. In reality, recently generated data is more likely to be used in investigations and such data would have been available anyway even if the Directive had never existed.”

The letter also draws attention to some of the core problems with the Directive, such as the lack of a harmonised definition of "serious crime" (and the far reaching consequences of this) and the lack of a harmonised approach to access and security.

EDRi recalls that "Article 52 of the Charter of Fundamental Rights of the European Union states that limitations of fundamental rights must not restrict or reduce the right in such a way or to such extent that the very essence of the right is impaired. The European Court of Human Rights has ruled similarly on numerous occasions."

Ironically, the Directive was proposed as a measure to harmonise the approach to this policy in the European Union - even though few countries had such a policy to begin with. It managed to disharmonise the single market, by forcing the policy onto 27 countries, with vastly varying retention periods, rules for cost reimbursement, etc.

The next step in the process for the Commission will be the preparation of an "Impact Assessment", listing a number of different policy options and coming to the conclusion (as has already been politically decided) that the Directive is useful but offering some small concessions, such as a small reduction in the maximum retention period, which will be sold as major improvements in the deeply flawed legislation...

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UN/EU - Time to Rethink Terrorist Blacklisting. (Statewatch, Jan11). Radio Nizkor with the collaboration of the International Human Rights Law Clinic at the American University Washington College of Law, 29Nov11.

"The terrorist proscription regimes enacted by the United Nations (UN) and the European Union (EU) after the attacks of 9/11 have been seriously undermined by growing doubts about their legality, effectiveness and disproportionate impact on the rights of affected parties. [...]

Ostensibly, these 'smart sanctions' (which target groups and individuals rather than whole populations) are designed to disrupt the activities of terrorist groups by criminalising their members, cutting off their access to funds and undermining their support.

In practice, however, far too many people have been included in national and international terrorism lists. At the same time, they have been systematically denied the possibility of mounting a meaningful defence to the allegations against them. Moreover, many listings are clearly politically or ideologically motivated, undermining genuine counter-terrorism efforts and paralysing conflict resolution efforts.

The UN blacklisting regime stems from UN Security Council Resolution 1267, which created the first list of alleged terrorists "associated with Osama bin Laden, the Taliban and Al-Qaeda". [...]

The EU's terrorist lists stem from the measures it took to transpose Resolution 1373 into EU law and currently stands at 57 individuals and 47 organisations. In addition to the UN and EU lists, many states have adopted domestic blacklists, massively expanding the net of criminalisation.

Whereas the EU has adopted a particularly broad definition of ‘terrorism’, the UN has failed to reach such an understanding, despite decades of deliberation. UN Security Council Resolution 1373 thus effectively outsources the definition of terrorism to nation states, encouraging the criminalisation of groups on the basis of geopolitical, foreign policy or diplomatic interests.

The criminalisation of self-determination movements that has resulted has transformed the migrant and Diaspora communities that support them into ‘suspect communities’ and obstructed peace processes aimed at resolving such conflicts.

There is now an irrefutable body of expert legal opinion that views international proscription regimes as incompatible with the most basic standards of due process. The adverse and unacceptable impact of the sanctions on fundamental human rights is also abundantly clear and systemic violations have been recognised repeatedly in judicial proceedings, particularly within Europe.

Listing decisions are usually based on secret intelligence material that neither blacklisted individuals nor the Courts responsible for reviewing the implementation of the lists will ever see. Needless to say, affected parties cannot contest the allegations against them (and exercise their right to judicial review) if they are prevented from knowing what the allegations actually are..."

This program shows the current state of the debate on what is known as "net neutrality" and the discussion points at a EU level based on the corresponding Opinion of the European Data Protection Supervisor (EDPS).

Net neutrality refers to the issue of whether Internet service providers (ISPs) should be allowed to monitor network traffic to filter or restrict Internet access, for example to block specific services or applications (for example peer to peer) or give preference access to others.

On October 7th, 2011 the EDPS, Peter Hustinx, released an opinion on the European Commission Communication on the open internet and net neutrality in Europe, a communication that had been adopted by the Commission on April 19th, 2011. (The Supervisor is an independent supervisory authority devoted to protecting personal data and privacy and promoting good practice in the EU institutions and bodies).

According to "La Quadrature du Net", an European advocacy group that promotes the rights and freedoms of citizens on the Internet, the EDPS's opinion on Net neutrality is a ground-breaking opinion. "He stresses that restrictions to Internet access inevitably harm privacy".

As the European Parliament enters in the final stage of the negotiations on its resolution on Net neutrality, this opinion underlines that the EU Commission's "wait and see" approach is bound to fail and is unjustifiable. Members of the EU Parliament - who will soon hold a crucial vote on the matter - must preserve citizens' privacy by requiring strong regulatory measures to ban discrimination of online communications.

In fact, the "Industry Committee" of the European Parliament unanimously adopted a resolution last October 20th demanding that the European Commission promptly assess the need for further legislative action...

La Quadrature du Net considers that the resolution passed by the Industry Committee is overall a positive text. However, the resolution falls short of asking for immediate legislative action to protect Net neutrality and for sanctions against Internet Service Providers who restrict access to the Internet. It also includes a loophole, which risks being interpreted as accepting such restrictions on mobile Internet on the pretext of alleged network congestion.

Jérémie Zimmermann, spokesperson for La Quadrature du Net, said that “While rather weak, the adopted resolution is a political commitment from the European Parliament in favour of Net neutrality, and aims to prevent telecom operators from restricting Internet access. Pressure is increasing on Commissioner Neelie Kroes and the EU telecoms regulators to come up with further legislation. Mrs Kroes must break away from her 'wait and see' approach and take action to effectively protect competition, innovation as well as citizens' freedom of expression and privacy online".

The draft guidelines on "Net Neutrality and Transparency" proposed by the Body of European Regulators for Electronic Communications (BEREC) in October 2011, have actually nothing to do with Net neutrality according to privacy groups, and instead readily accept that telecom operators can restrict access to the Internet as long as users are informed. They only prove that mere transparency and competition will not prevent operators from violating Net neutrality.

The text adopted in the Committee on Industry, Research and Energy vote will now move to be adopted in plenary without the possibility of further amendments, in a vote scheduled for late-November 2011...

"Directive 2006/24/EC on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks more frequently goes by the name of the Data Retention Directive.

The Directive requires service provider to keep communications data concerning: phone-calls, faxes, mobile phone calls (including location) and internet usage (it should be noted that the monitoring of internet usage also reveals the content).

This highly controversial legislation was passed in 2006, its path cleared by the terrorist attacks in London and Madrid. Both these occasions provided the Council with the opportunity to introduce EU-wide data retention measures

Perhaps the most well-known comment on the Data Retention Directive is that of the European Data Protection Supervisor, who referred to it as “the most privacy invasive instrument ever adopted by the EU in terms of scale and the number of people it affects.” This statement reinforced the arguments made by numerous civil society organisations, individuals and politicians.

It is because of the highly invasive nature of the surveillance and monitoring permitted by mandatory data retention that the directive was annulled or suspended by court decisions in several Member States...

However, the idea that data retention and greater surveillance of telecommunications will help in the “fight against terrorism” is persistent, and seems to be resonating across Europe. The situation in Norway and the failure of police and security services to prevent the attacks has given rise to a number of arguments for enhanced surveillance of the internet.

At the EU level, there remains a significant lobby opposing any comprehensive re-thinking of how data retention should work, or whether it is necessary at all.

A number of Member States are strongly in favour of retaining the Directive as it stands – a recent leaked paper drafted by France, Ireland and the UK states that data retention "has played a key role in maintaining public security throughout Europe."

The paper attempts to justify current data retention legislation on numerous grounds, not least through recounting tales of specific cases where retained data has been successfully utilised.

Yet it may have been entirely possible to solve these cases without mandatory, blanket retention of all telecommunications information by targeting suspects. Alternative options include a process known as “quick-freeze”, whereby law enforcement bodies are able to ensure the retention of specific telecommunications data after an investigation has begun.

The differences between Member States were reflected at a recent meeting of the Working Party on Data Protection and Information Exchange...

It remains to be seen whether the original Directive will be amended or repealed in order to better respect the rights to privacy and data protection provided by Articles 7 and 8 of the European Charter of Fundamental Rights, and the right to privacy outlined in Article 8 of the European Convention on Human Rights..."

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September 2011

EU - In these times of crisis, cuts in food aid programme for the most deprived EU citizens are highly immoral. Radio Nizkor, 28Sep11.

At the European Union Council on Agriculture and Fisheries of September 20, 2011, member states could not reach an agreement to renew the EU programme on the distribution of food products to the most deprived. Six out of the 27 member states were against it.

The total value of funds for the 2012 programme for the supply of food for the most deprived persons in the EU has been set at 113 million Euros, a sharp reduction from the near € 500 million awarded in recent years. The 2012 food aid scheme will be based exclusively on existing intervention stocks.

The scheme to distribute free food to the most deprived persons in the Community was launched as an emergency measure in the exceptionally cold winter of 1986/87, when surplus stocks of agricultural produce were given to Member State charities for distribution to people in need. The measure was subsequently formalised and based on intervention stocks.

As a result of the reform process that the Common Agricultural Policy has undergone since the early 1990s, large surplus stocks are now non-existent.

The phasing-down of systematic intervention on the markets, together with a growth in demand for staple food products, means that only small quantities are now available for the "Most Deprived" scheme. To ensure that the scheme could continue, it was amended in 1995 to allow the surplus stocks to be complemented by a financial contribution, when this was necessary...

In 2008 the Commission proposed not to limit the purchase of food aid just to times when intervention stocks are not available. Such purchases accounted for 90% of the resources allocated for the 2009 programme... Germany however challenged the practice of market purchasing, stating that the decision to purchase food for the poor falls under social policy and is therefore a national competence. The Court of Justice followed the German reasoning in its ruling last April 13th. This led to the annulment of the European provisions allowing market purchases...

The 2012 scheme will thus be based exclusively on existing intervention stocks, with member states receiving less than a quarter of what they received in earlier years. The six countries opposed to the continuation of the program for 2012-2013 are Germany, the United Kingdom, Holland, The Czech Republic, Denmark and Sweden.

The Commission estimates that 80 million people in the EU are at risk of poverty... In the current economic crisis, it would be unacceptable and immoral for Europe to abandon its most vulnerable citizens, specially if we consider, for example, that the cumulative cost of the UK's involvement in the Libya conflict to the end of August could be as high as 1.75bn pounds, that is to say, around 2.71bn US dollars, and the mission is not over yet...

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June 2011

EU/USA - European Commission's Legal Service says EU-USA PNR Agreement is not Compatible with Fundamental Rights. (StateWatch). Radio Nizkor, 28Jun11.

On May 18th, 2011, the European Commission's Legal Service sent a Note to the Director-General of Home Affairs stating that it does not consider the planned agreement with the USA to exchange PNR (Passenger Name Record) data on individuals is "compatible with fundamental rights".

The Commission, which has been in charge of negotiating the agreement with the USA, has circulated the final agreement prior to formally submitting it to the Council of the European Union and the European Parliament for their agreement. This draft was distributed among Delegations on May 20th, 2011.

Said agreement has not been amended to meet the concerns of the Legal Service. Formally, the European Parliament cannot amend the agreement but it has to agree it - in effect, the parliament can veto the planned Agreement.

The European Commission's Legal Service Note says that the Legal Service has reviewed the draft agreement in respect of fundamental rights and: "considers that there are grave doubts as to its compatibility with the fundamental right to data protection." It concludes in fact that the Legal Service "does not consider the agreement in its present form as compatible with fundamental rights." [...]

On this matter, Tony Bunyan, Statewatch Director, comments:

"Secret Minutes of EU-US meetings since 2001 show that they have always been a one-way channel with the US setting the agenda by making demands on the EU. When the EU does make rare requests like on data protection, because US law only offers protection and redress to US citizens, they are bluntly told that the the US is not going to change its data protection system - as they were at the EU-US Justine and Home Affairs Ministerial Meeting in Washington on 8-9 December 2010.

This Agreement does not meet EU data protection standards of proportionality or purpose limitation, nor does it provide judicial redress to data subjects or any guarantee of independent oversight.

The European Parliament should refuse to consent to this Agreement as it is empowered to do under the Lisbon Treaty."

What happens to your personal data when you board a plane, open a bank account, or share photos online? How is this data used and by whom? How do you permanently delete profile information on social networking websites? Can you transfer your contacts and photos to another service?

Controlling your information, having access to your data, being able to modify or delete it – these are essential rights that have to be guaranteed in today's world.

The European Commission announced on November 4th, 2010, a strategy to "protect individuals' data in all policy areas, including law enforcement, while reducing red tape for business and guaranteeing the free circulation of data within the EU.

The key goals include, as the Electronic Privacy Information Center informs, "strengthening the rights of individuals, enhancing the free flow of information, extending privacy safeguards to police and criminal justice records systems, ensuring high levels of protection for data transferred outside of the European Union, and more effective enforcement of privacy rules. The new policy will build on the 1995 EU Data Directive which is the foundation for much of privacy law across Europe".

The current regulatory framework is basically provided by the Directive 95/46 of the European Parliament and the Council, of October 24th 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data". This general Data Protection Directive has been complemented by other legal instruments, such as the e-Privacy Directive for the communications sector..

In 2009, the Commission launched a review of the current legal framework on data protection, starting with a high-level conference in May 2009, followed by a public consultation running until the end of 2009. Targeted stakeholders consultations were organised throughout 2010.

This policy review will be used by the European Commission with the results of a public consultation to revise the EU’s 1995 Data Protection Directive. Public submissions and comments can be made on the European Commission’s public consultation website until January 15, 2011.

Building on this, the Commission will present proposals for a new general data protection legal framework in 2011, which will then need to be negotiated and adopted by the European Parliament and the Council...

Peter Hustinx, the European Data Protection Supervisor (EDPS), spoke to the press about this subject on November 15th. He emphasised the importance of the reform of legal framework for data protection and insisted on the need for a strong and effective data protection in a society where personal information is used in quantities that cannot be measured, very often without individuals being aware of it...

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October 2010

EU - The EP and the European Commission signed a revised Framework Agreement governing working relations between the two institutions and strengthening democratic scrutiny over EU external instruments. Radio Nizkor, 25Oct10.

The European Parliament approved proposals on October 21st to give European Members of Parliament a power of scrutiny over how the European Commission finances projects intended to promote stability in non-EU countries, improve cooperation with developing and other countries and promote democracy and human rights.

Strategy papers for geographic and thematic programmes, as well as multi-annual indicative programmes drafted by the Commission for the external co-operation instruments "shall be adopted by means of delegated acts", according to amendments approved by the Foreign Affairs, Development and International Trade committees.

This would give the European Parliament a de facto veto, by enabling it to block these strategy papers and multiannual programmes and require the Commission to present amended proposals.

All five reports were adopted at first reading without any agreement having been reached with the Council and Commission on the most contentious issue, relating to the application of delegated acts. These reports pertain to the Instrument for Stability, the financing instrument for development cooperation, the financing instrument for the promotion of democracy and human rights worldwide and the financing instrument for cooperation with industrialised countries.

One day before, on October 20th, the European Parliament President Jerzy Buzek and European Commission President José Manuel Barroso signed in Strasbourg the revised Framework Agreement governing working relations between the two institutions. The signature brings to a successful conclusion a process that started almost one year ago with the entry into force of the Lisbon Treaty. The revised Framework Agreement adapts the existing accord from 2005 to the new Treaty framework.

However, member states threatened on October 21st to take the European Parliament and Commission to court over what the Council of ministers calls the "illegal" provisions contained in the inter-institutional agreement signed between the EP and the Commision, which gives European MPs extra powers on international negotiations and greater access to classified EU documents...

Deu - Demjanjuk's detention leads to a reassessment of impunity in Europe. Radio Nizkor, 04Jun09 (Original Spanish version produced on 27May09).

John Demjanjuk, a member of the SS Totenkopf and responsible for crimes of war and crimes against humanity, arrived at Munich airport on flight N250LB on Tuesday 12th May 2009 after having been deported from the United States.

In March of this year the Prosecutor's Office of Munich filed charges against him and issued an arrest
order which, according to media reports, concerns his complicity in the murder of 29,000 Jews
in Sobibor concentration camp in occupied Poland.

Radio Nizkor has decided to do a specific programme to clarify some of the issues concerning
existing, substantially irrefutable, evidence, and to set out the history of his crimes with respect to
the Nazi extermination camps. [...]

Demjanjuk entered the United States in 1952 in reliance on the Law of Displaced Persons and obtained citizenship in 1958.

The District Court for the Northern District of Ohio concluded on 21 February 2002 that Demjanjuk's citizenship should be revoked... On 28th December 2005 the then Chief Immigration Judge Michael J. Creppy, issued a removal order in respect of Demjanjuk... The countries included in the order were Ukraine or, in the alternative, Germany or Poland.

These proceedings came to an end on 19th May 2008, when the US Supreme Court rejected Demjanjuk's petition for certiorari.

On 19th June 2008, various survivors and relatives of Spanish victims of the National-Socialist regime, represented by Equipo Nizkor, filed criminal proceedings in the National Court (Audiencia Nacional) in Madrid against John Demjanjuk and three other SS... Also on 19th June 2008 the German authorities announced their interest in seeking the handover of Demjanjuk from the United States [...]

Demjanjuk's service as an armed guard in Nazi concentration camps was documented in the course of the denaturalization proceedings initiated by the US Government in 1999.

The District Court for the Northern District of Ohio which concluded in 2002 that Demjanjuk's citizenship should be revoked, relied, in reaching this conclusion, not only on official and original wartime documents - such as his identity card as a guard- but also on the professional reports of an expert on the SS Totenkopf and on this type of documentation - Charles W. Sydnor...

Dr. Sydnor prepared an expert report for this Court, followed by two supplementary reports. All of them were provided to the Spanish National Court by the relevant US authorities in December 2008 in a response to a request for judicial assistance - an International Rogatory Commission - issued by the Central Investigating Court No. 2. They form part of the documentary evidence which has been officially supplied by the US authorities.

This expert's conclusions, accepted as admissible facts by the US Courts insofar as they concern
Demjanjuk's service as an armed guard in Nazi concentration camps are as follows:

"Iwan Demjanjuk entered German service as a guard auxiliary at Trawniki Training Camp in mid-1942. Shortly after his arrival, he received Trawniki identification number 1393 and the camp administration created Dienstausweis No. 1393 for him. Demjanjuk was issued a uniform and a rifle
at Trawniki and he received training there. He also received the rank of Wachmann (guard private). On 22 September 1942, he deployed to the Manorial Estate Okzow, where he served as a guard. After this service, he returned to Trawniki and deployed to the concentration camp in Lublin
commonly known as Majdanek, where he served during the winter of 1942-43. At Majdanek, Demjanjuk guarded prisoners and prevented them from escaping. On 18 January 1943, he was apprehended returning to the camp after leaving the grounds in violation of the typhus quarantine then in effect. He was punished for this infraction on 21 January. After his service at Majdanek, Demjanjuk returned to Trawniki. On 26 March 1943, the Germans ordered his deployment to the SS Special Detachment Sobibor. He arrived at Sobibor on 26 or 27 March 1943 and served there for some period of time. During his service at Sobibor, Demjanjuk guarded prisoners and prevented them from escaping. He also participated in the extermination process that was Sobibor's raison d'être. Afterwards he returned to Trawniki. On 1 October 1943, the Germans ordered Demjanjuk's transfer to Flossenbürg Concentration Camp. He arrived there by 8 October, when he was again issued a rifle, along with a bayonet. Demjanjuk served at Flossenburg until at least 10 December 1944, that is, for at least fourteen months. During his service there, he guarded prisoners and prevented them from escaping. [...]

The District Court for the Northern District of Ohio established that "[G]overnment Exhibit 3 is a service identity pass from Trawniki Training Camp, issued in the name of Iwan Demjanjuk, identification number 1393" and that "Government Exhibit 3 is an Authentic German Wartime Document Issued to Defendant" and that it "is in a condition that raises no suspicion as to its authenticity."

It is worth highlighting that in February 2009 the Prosecutor's Office in Munich again submitted this
document to further forensic tests and after satisfying itself as to its authenticity proceeded a few
days later to demand the handover of Demjanjuk.

With reference to Demjanjuk's service at Flossenbürg Concentration Camp, where more than 150 Spaniards were imprisoned, the Court considered that:
"The 'Iwan Demjanjuk' identified at entry 53 on the Flossenburg transfer roster is the same Trawniki-trained guard identified on Service Identity Pass No. 1393..."

According to a press article published by the Süddeutsche Zeiung in Germany: "The trial against John Demjanjuk will no doubt be the last Nazi war trial. These last trials were and are horrible not because the Nazi henchmen have become so horribly old, but because the German criminal justice system has taken so horribly long and been so horribly lenient..."

EU - European Parliament passes resolution on the new
EU-USA PNR agreement calling it "substantially flawed". Radio Nizkor, 19Jul07

Members of the European Parliament fear that the new Passenger Name Record agreement between the European Union and the
United States, reached on June 28th, 2007, fails to protect citizens' data.

The European Parliament passed a resolution on July 12, 2007 on this agreement expressing that that the new deal still
fails to offer an adequate level of data protection and it has been concluded without any involvement of parliaments from both
sides, lacking democratic oversight.

While recognising the difficult conditions under which the negotiations took place, MEPs regret that the EU-US agreement
for the transfer of Passenger Name Records is "substantively flawed", in particular by "open and vague definitions and
multiple possibilities for exception".

Even though the European Parliament welcomed the provision that existing data protection law for US citizens (US Privacy
Act) will be extended administratively to EU citizens' data processed in America, MEPs felt there is still much more to be
improved... It "criticises the failure of the new PNR agreement to offer an adequate level of protection of PNR data, and
regrets the lack of clear and proportionate provisions as regards the sharing of information and retention and supervision by
data protection authorities; is concerned about the numerous provisions that are to be implemented at the discretion of the US
Homeland Security Department"...

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EU - European Commission to propose EU Passenger Name
Record travel surveillance system . (StateWatch). Radio Nizkor, 19Jul07

After the European Union concluded on June 28, 2007 a controversial new agreement with the USA giving its agencies access
to PNR (passenger name record) personal data on everyone flying to and from that country, the European Commissioner for
justice and home affairs, Mr Frattini, said that he would present a Framework Decision for a EU PNR system in October.

Mr Frattini is reported as saying that, in the wake of the attempted attacks in London and Glasgow: "I suggest that all
member states should equip themselves with a PNR system and share information with others when relevant".

Mr Frattini's proposal is all the more confusing as there appears to have been no reference to the implementation of the
April 2004 EU Directive on the obligation of carriers to communicate passenger data which had to be implemented in all member
states by 5 September 2006...

The data to be sent comprises, according to said Directive, personal data on each passenger: type of travel document (eg:
passport/visa), nationality, full name and date of birth, that is, the data held on the "machine readable zone" (MRZ) of
passports (just four items of data). This is known as Advance Passenger Information or "API".

It appears that Spain is the first EU country to start collecting API (Advance Passenger Information) from incoming
travellers as from 13 June 2007 - the UK requires Advance Passenger Information from targeted countries.

Article 3.1 of the 2004 Directive refers to transferring data "by the end of check-in". However, airlines are likely to
collect Advance Passenger Information data when the ticket is booked days or weeks before the flight. This data could be
passed to the national agencies well prior to check-in and be followed by a final passenger manifest after check-in.

So the question has to be asked: If the collection of Advance Passenger Information at the flight booking stage becomes the
norm why is Passenger Name Record needed?...

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June 2007

EU/US - EU negotiators agree that PNR data will be held
for 7 years, doubling the current 3.5 years, and also that data can be access for a further 8 years. (StateWatch). Radio
Nizkor, 29Jun07

An "Extraordinary meeting" of the Permanent Representatives Committee (COREPER) was held in Luxembourg on 12 June 2007
during the Justice and Home Affairs Council. The sole subject on the agenda was the EU-USA passenger name record (PNR)
agreement.

The current "Undertakings" state that PNR data will be held for: "3.5 years from the date the data is accessed (or
received) from the air carrier's reservation system. After 3.5 years, PNR data that has not been manually accessed during that
period of time, will be destroyed. PNR data that has been manually accessed during the initial 3.5 year period will be
transferred by the Customs and Border Protection Department to a deleted record file."

Under the proposed new agreement: "PNR data would be kept for 7 years as "active" data and 8 years as "dormant" data."
Under the existing agreement data which has not been accessed for 3.5 years is destroyed. Under the proposed agreement all
data will be held for 15 years...

The USA has used the successful challenge against the legal basis of the 2004 EU-US agreement (plus "Undertakings") on the
transfer of passenger name records in the European Court of Justice by the European Parliament to put forward significant
changes - to which the EU has agreed.

"What is particularly outrageous is that if the law changes in the USA the way the agreement is implemented changes too
without any renegotiation - which is very worrying given the nature of new laws which remove the rights of suspects including
habeaus corpus", commented Tony Bunyan, Statewatch editor...

On June 27th, 2007, two weeks after the EU Permanent Representatives Committee meeting on the agreement, the European Data
Protection Supervisor, Peter Hustinx, addressed a letter to the German Council Presidency, expressing grave concern" at the
proposals to:

extend the time personal data is held from 3.5 years to 15 years:

data can be passed to a "broad range of US agencies" with "no limitation" on its further processing;

the absence of a "robust legal mechanism" for EU citizens to "challenge misuse" of their data;

Gbr - New army special forces regiment involved in the
operation that led to the killing of an innocent Brazilian. (The Guardian, UK). Radio Nizkor, 10Aug05.

According to an article published on August 4, 2005 by the British newspaper “The Guardian”, a new army special forces
regiment was involved in the operation that led to the killing of an innocent man at Stockwell tube station in south London.

The article says that the Special Reconnaissance Regiment, set up in April to help combat international terrorism, was
deployed in the surveillance operation which led to the shooting of Jean Charles de Menezes, a Brazilian electrician, on July
22, according to Whitehall sources...

On August 3, Whitehall sources told the Guardian that soldiers of the Special Reconnaisance Regiment, modelled on an
undercover unit that operated in Northern Ireland, was engaged in "low-level intelligence behind the scenes" when the
Brazilian was shot. There was "no direct military involvement in the shooting", the sources said...

The regiment absorbed 14th Intelligence Company, known as "14 Int", a plainclothes unit set up to gather intelligence
covertly on suspect terrorists in Northern Ireland. Its recruits are trained by the SAS...

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July 2005

EU - Update on anti-terror policies and data retention in
the European Union. (European Commission Newsroom; StateWatch.). Radio Nizkor, 24Jul05.

A "Declaration on the European Union response to the London bombings", that defines the priorities to combat terrorism and
indicates a strict timetable for implementing practical measures, was adopted on July 13th. 2005 in Brussels at the end of an
extraordinary meeting of the European Interior ministers.

According to this Declaration, the Council will:

agree the Framework Decisions on the Retention of Telecommunications Data (October 2005), on the European Evidence Warrant
(December 2005), and on the exchange of information between law enforcement authorities (December 2005); adopt the Decision on
the exchange of information concerning terrorist offences (September 2005);

combat terrorist financing by agreeing by December 2005 a Regulation on Wire Transfers; adopting the Third Money
Laundering Directive and the Regulation on cash control by September 2005; agreeing a Code of Conduct to prevent the misuse of
charities by terrorists (December 2005); reviewing the overall EU’s performance (December 2005) and urging Member States to
ensure that comprehensive financial investigation is a part of all terrorist investigations and to develop robust asset
freezing powers.

Regarding the specific issue of data retention, a proposal for an EU Framework Decision on the mandatory retention of all
traffic data was put forward by the UK, Ireland, France and Sweden on 28 April 2004. Tony Bunyan, Statewatch editor, comments
that "...If this proposal was limited to tackling terrorism that would be one thing but it is not. It will put everyone in the
EU under surveillance, be used to tackle crime in general and potentially could be used for social and political control."

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December 2004

Grc - OMCT denounces the disappearance of 502 children from a state institution in
Greece between 1998 and 2002. (World Organization Against Torture - OMCT). Radio Nizkor,
09Dec04.

EU - Privacy groups warn that proposed retention of personal data resulting from
communications is necessarily an invasive act. (Privacy International and European Digital Rights).
Radio Nizkor with the collaboration of the Orville H. Schell, Jr. Center for International Human Rights
at Yale Law School, 18sep04.

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July 2004

EU - European asylum policy is leading to dismantling of refugee protection
in the EU. (StateWatch Analysis). Radio Nizkor, 27Jul04.

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EU - President of the European Parliament asked EU
court to annul EU-US passenger data deal. (StateWatch / e-Government news from European Communities).
Radio Nizkor, 23Jul04.